Michael M. Brennan - Page 10

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          Commissioner, supra at 10.  Here, respondent argues, and we                 
          agree, that IBM did not make the payment on account of a personal           
          injury.  The release form appears to be a standard document used            
          by IBM for all of its employees who participate in the ITO II               
          Program.  Moreover, the amount of the $52,169 lump-sum payment              
          was calculated on the number of years of service and petitioner's           
          salary.  Finally, the release states that if petitioner were                
          rehired by IBM, he could be required to repay some portion of the           
          lump-sum payment based on the number of weeks off the IBM payroll           
          compared with the number of weeks' salary used to calculate the             
          lump-sum payment.  As in Sodoma v. Commissioner, supra, and Webb            
          v. Commissioner, supra, the lump-sum payment herein appears to              
          have been severance pay rather than a payment for personal                  
          injury.  Severance pay, just like the pay it replaces, is taxable           
          income.                                                                     
               Finally, we note that petitioner has not alleged or come               
          forward with any evidence of the specific amounts of the payments           
          allocable to claims of tort or tort-type damages for personal               
          injuries.  Failure to do so results in the entire amount being              
          presumed to be taxable.  See Taggi v. United States, supra; Getty           
          v. Commissioner, 91 T.C. 160, 175-176 (1988), affd. as to this              
          issue and revd. on other issues 913 F.2d 1486 (9th Cir. 1990).              
          The release makes no allocation, and petitioner has not set forth           
          any facts upon which he would rely to prove an allocation.                  





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